Cook NSW Pty Ltd v Georges River Council [2025] NSWLEC 1646

File Number(s): 2025/38151

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings are a Class 1 development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Modification Application MOD2024/0021 (the Modification Application) by Georges River Council (the Council) to modify Development Consent DA2018/0350 to make changes to the internal layout and front façade of the approved development at 8 Cook Street, Mortdale (Lots 30 and 31 DP 12444) (the site).

2. The parties advise that the Modification Application is made pursuant to the provisions of s 4.55(2) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal are made as a result of an agreement between the parties that was reached following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act).

History of the Development Consent

4. Development application DA2018/0350 was approved by the Council on 20 December 2018 (the Original Consent).

5. The Original Consent approved the demolition of an existing single storey dwelling on the site, and the construction of two storey attached dwellings on each of the two lots that comprise the site.

Current Proceedings

6. The Applicant, dissatisfied with the Council’s determination of the Modification Application, filed a Class 1 Appeal Application on 30 January 2025 under s 8.9 of the EPA Act seeking to modify the Development Consent. Georges River Council is the Respondent to this appeal by virtue of s 8.15(4) of the EPA Act.

7. The Respondent filed a Statement of Facts and Contentions with the Court on 10 March 2025. The Applicant lodged a Statement of Facts and Contentions in Reply on 26 March 2025.

8. On 12 June 2025, the Joint Expert Report of the Town Planners (the Joint Report) was filed with the Court. The Joint Report annexed amended architectural plans dated 18 June 2025.

9. It is noted in the s 34 Agreement that the Respondent has approved under section 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending the Modification Application (the amended Modification Application) to rely on those plans dated 18 June 2025 (discussed in para [11] below).

The Modification Application

10. The Modification Application as lodged with the Respondent on 27 March 2024 included the following proposed modifications:

11. Lot 30 dwelling:

(a) Basement:

(i) Reduce FFL from RL 40.20 to RL 40.050; and (ii) Reconfiguration of garage entrance and stairs;

(b) Ground floor:

(i) Reduce FFL from RL 42.51 to RL 42.500; (ii) Reduce depth of Porch; (iii) Expand alfresco; (iv) Reconfiguration of dining, laundry, bath, hallway and stairs; and (v) Realignment of windows to match internal changes;

(c) First floor:

(i) Reduce FFL from RL 45.51 to RL 45.450; (ii) Delete front and rear balcony; (iii) Propose new balcony on northern façade; (iv) Proposed one additional bedroom; (v) Reconfiguration of bedrooms, baths, hallway and stairs; and (vi) Realignment of windows to match internal changes;

2. Lot 31 dwelling:

(a) Ground floor:

(i) Reduce garage FFL from RL 42.40 to 42.350; (ii) Reduce dwelling FFL from RL 42.51 to 42.500; (iii) Expand and redesign alfresco; (iv) Reconfiguration of living, kitchen, bath, hallway and stairs; and (v) Realignment of windows to match internal changes;

(b) First floor:

(i) Reduce FFL from RL 45.51 to RL 45.450; (ii) Delete rear balcony; (iii) Reduce depth of front balcony; (iv) Propose one additional bedroom; (v) Reconfiguration of bedrooms, baths, hallway and stairs; and (vi) Realignment of windows to match internal changes.

11. The parties advise that the changes made to the 18 June 2025 architectural plans are described in the schedule of amendments dated 19 June 2025 submitted by the Applicant and which in summary, are:

12. Additions to plans to show cut and fill details, prevailing setbacks, details of finishes, GFA calculations, an overlay of the approved floor plans onto the proposed floor plans to show proposed and approved setbacks;

13. An increase to rear setbacks both dwellings including garage of dwelling 2;

14. The addition of rear stairs to the alfresco (per the approval);

15. A reduction in the width of the garage to dwelling 2 and an increase in depth;

16. Windows added to the northern elevation of dwelling 2;

17. The setback to the street increased for the garage for dwelling 1;

18. A green space/hedge shown between the 2 dwellings at front;

19. A reduction in the width area of the ground floor alfresco area (including roof above) so it aligns with the adjoining kitchen setback;

20. The provision of a 3D perspective from both street elevations; and

21. The location of the garbage storage area shown for dwelling 2, the location of A/C units shown, the location and details of rainwater tanks and relocation of the clothes drying area for dwelling 2.

Section 34AA conciliation conference

12. The Court arranged a conciliation conference for the Modification Application under s 34 AA of the LEC Act between the parties, which was held on 19 and 20 June 2025. I presided over the conciliation conference. The one submitter did not wish to attend the on-site view, which was vacated at the request of the parties.

13. The amendments agreed by the parties to the proposed development in the amended Modification Application are outlined at para [11] above.

14. At the conciliation conference, the parties confirmed that they were anticipating reaching a s 34 Agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The Respondent was seeking further information from the Applicant in relation to details about proposed finishes, the fencing proposed, and rainwater tanks.

15. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The matters identified by the Respondent in para [14] above were resolved.

16. A signed s 34 Agreement with Annexures A and B was filed with the Court on 20 June 2025. The amended plans were filed with the Court on 24 June 2025. The s 34 Agreement was supported by an agreed statement of jurisdictional prerequisites.

17. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant consent to the amended Modification Application.

18. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

19. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 Agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Substantially the Same Development

20. Pursuant to s 4.55(2) of the EPA Act, a consent authority may modify a development consent if:

it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

it has notified the application in accordance with—

the regulations, if the regulations so require, or

a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

21. In relation to s 4.55(2)(a) being substantially the same development, the parties advise that the proposed development remains a proposal for attached dwellings, with a similar streetscape presentation. The changes proposed do not have the effect of making the development not substantially the same.

Owner’s consent

22. The parties advise that at the date the Modification Application was lodged, the owners of the land were Rita Perri and Carmine Perri. Owners’ consent to the lodgement of the Modification Application was signed by Rita Perri and Carmine Perri and lodged with the Modification Application.

Section 4.55(2)(b) of the EPA Act: Consultation

23. The parties advise there are no conditions imposed by a Minister, public authority or approval body in respect of the Consent, that require consultation prior to approval of the amended Modification Application.

Section 4.55(2)(c) and (d) of the EPA Act*: Notification & Consideration of Submissions*

24. The parties advise that the Modification Application was notified in accordance with s 4.55(2)(c) of the EPA Act from 18 April 2024 – 10 May 2024, and that one submission was received concerning asbestos removal. The parties have considered that submission.

25. The parties advise that on 19 March 2025 the objector was notified of the proceedings, the s 34AA conciliation and hearing dates, and their ability to make a submission at the site inspection. The submitter did not attend the site view, which was vacated (as noted in para [12] above).

Conditions

26. The s 34 Agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

State Environmental Planning Policies

27. The parties advised that a number of State Environmental Planning Policies apply to the site, as follows:

28. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP):

(a) Chapter 6 of the Biodiversity SEPP provides aims and controls with respect to the Georges River Catchment; (b) Part 6.2, Chapter 6 of the Biodiversity SEPP provides controls for development in regulated catchments, which is defined in Schedule 6, to include the ‘Georges River Catchment’; (c) The amended Modification Application proposes modifications to the development which has already been approved and does not raise any additional requirement for assessment under the Biodiversity SEPP.

2. State Environmental Planning Policy (Sustainable Buildings) 2022 (the Sustainable Buildings SEPP):

(a) An amended BASIX Certificate reflecting the proposed changes to be approved by the amended Modification Application has been provided. Accordingly, the provisions of the Sustainable Buildings SEPP are met.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards and Resilience SEPP):

(a) In relation to s 4.6 of the Hazards and Resilience SEPP, development consent has been granted under the original DA for the residential use of the site. The amended Modification Application proposes modifications to development which has already been approved and does not raise any additional requirement for assessment under the Hazards and Resilience SEPP.

28. The parties confirm that the original development consent has been previously assessed as complying with the requirements of these policies.

Georges River Local Environmental Plan 2021

29. Georges Local Environmental Plan 2021 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

30. The site is zoned R2 – Low Density Residential pursuant to cl 2.2 of the LEP;

31. The proposed development is permitted with consent in the R2 zone; and

32. I am satisfied that the proposed modification of the approved development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

33. Clause 4.3 of the LEP provides that a maximum height of 9 metres applies to the site. The proposed development does not exceed this height.

34. Clause 4.4 of the LEP provides that the maximum FSR of 0.55:1 applies to the site. The original DA was approved with a FSR in excess of the current development standard. The development proposed in the amended Modification Application has an FSR of 0.60:1 for Lot 31 (Dwelling 1) and 0.59:1 for Lot 30 (Dwelling 2). This is less than the FSR of the approved development. A submission in accordance with cl 4.6 of the LEP to vary the FSR is not required for a modification application.

35. The parties advise that:

36. The site is not mapped as being in a heritage conservation area, containing a heritage item, or containing acid sulfate soils, so cl 5.10 and cl 6.1 of the LEP are not relevant;

37. There is no material change to earthworks as a result of the amended Modification Application which would require additional assessment pursuant to cl 6.2 of the LEP; and

38. There is no material change to stormwater management as a result of the amended Modification Application which would require additional assessment pursuant to cl 6.3 of LEP.

Consideration of matters under s 4.15(1) of the EPA Act

33. In determining an application for modification of a consent, a consent authority must take into consideration matters referred to in s 4.15(1) of the EPA Act, as are of relevance to the development which is the subject of the application.

34. The EPA Act requires the assessment of modification applications against the relevant matters (‘matters for consideration’) set out in s 4.15(1) of the EPA Act.

35. The parties advise that all of the matters contained in s 4.15(1) of the EPA Act that are of relevance to the proposed development have been taken into consideration, and the Modification Application as amended, is acceptable subject to conditions.

Conclusion

36. Having considered the advice of the parties provided above at [20]-[35], I am satisfied that:

37. the Applicant’s amended Modification Application can be approved having regard to the matters in subs 4.15(1)(b)-(e) of the EPA Act;

38. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EPA Act have been satisfied; and

39. approval of the proposed development is in the public interest.

40. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

41. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

39. The Court notes:

40. that Georges River Council, as the relevant consent authority, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Modification Application MOD2024/0021 made on 19 June 2025 to rely on the documents specified below:

| Drawing No | Drawing Title | Prepared By | Date | | 02 (rev D) | Proposed Site Plan | Cedar Design | 18/6/2025 | | 03 (rev D) | Proposed Basement Plan | Cedar Design | 18/6/2025 | | 04 (Rev D) | Proposed Ground Floor Plan | Cedar Design | 18/6/2025 | | 05 (Rev D) | Proposed Ground Floor Plan | Cedar Design | 18/6/2025 | | 06 (Rev D) | Proposed First Floor Plan | Cedar Design | 18/6/2025 | | 07 (Rev D) | Proposed First Floor Plan | Cedar Design | 18/6/2025 | | 08 (Rev D) | Proposed Roof Plan | Cedar Design | 18/6/2025 | | 09 (Rev D) | Building Elevations 1 | Cedar Design | 18/6/2025 | | 10 (Rev D) | Building Elevations 2 | Cedar Design | 18/6/2025 | | 11 (Rev D) | Cross Sections (Basix Details) | Cedar Design | 18/6/2025 | | 12 (Rev D) | Landscape | Cedar Design | 18/6/2025 | | 13 (Rev D) | Site Analysis Plan | Cedar Design | 18/6/2025 | | 14 (Rev D) | Colours and Finishes | Cedar Design | 18/6/2025 | | 15 (Rev D) | Shadow Diagrams - Winter | Cedar Design | 18/6/2025 | | 16 (Rev D) | Shadow Diagrams - Summer | Cedar Design | 18/6/2025 | | 17 (Rev D) | Erosion and Sediment Control | Cedar Design | 18/6/2025 | | 18 (Rev D) | Proposed Demolition Plan | Cedar Design | 18/6/2025 | | 19 (Rev D) | Driveway Profiles | Cedar Design | 18/6/2025 | | 20 (Rev D) | GFA Calculation Page | Cedar Design | 18/6/2025 | | 21 (Rev D) | Cut and Fill Plan | Cedar Design | 18/6/2025 | | Document | Title | Prepared By | Date | | BASIX | Cert 1736695M_02 | Sustainability -Z Pty Ltd | 18/6/2025 | | Traffic Certification | Carpark and driveway certification of a proposed dual occupancy N22077A v.1a | Motion Traffic Engineers | April 2025 | | Acoustical Report | 3259R20252703 Rcf8CookStreetMortdaleDA | Koikas Acoustics | 1 April 2025 |

Orders

40. The Court orders that:

41. The appeal is upheld.

42. Development Consent No. DA2018/0350 is modified in the terms in Annexure A.

43. Development Consent No. DA2018/0350 as modified by the Court is Annexure B.

G Kullen

Acting Commissioner of the Court

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Annexure A (218 KB, pdf)

Annexure B (996 KB, pdf)